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By Thurman W. Arnold Washington University Law Review Volume 26 Issue 2 January 1941 Review of “The Bottlenecks of Business,” By Thurman W. Arnold Frank R. Strong Duke University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Law Commons Recommended Citation Frank R. Strong, Review of “The Bottlenecks of Business,” By Thurman W. Arnold, 26 WASH. U. L. Q. 294 (1941). Available at: https://openscholarship.wustl.edu/law_lawreview/vol26/iss2/6 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. 294 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 26 of legal restrictions on the right of states to acquire territory by conquest, a right universally sanctioned by practice and in modern times pretty widely recognized in theory although in the middle ages strongly protested by the great international publicists. The most illustrious spokesmen of the pre-modern traditional doctrine that no legal right of conquest exists and that conquest does not in itself constitute a basis for title to territory were St. Augustine, Vitoria, and Suarez. With Hugo Grotius in the early seventeenth century and still more emphatically with Vattel appeared the modern doctrine of the right of con- quest and the legality of expansion by force. Dissenters from this generally accepted modern doctrine have continued in prominence, notably among Latin-American and continental European writers. Quite apart from the varying and sometimes conflicting theories of publicists, the general practice of acquiring territory by conquest has not lacked judicial and arbitral sanctions. In recent years a significant number of agreements have been reached by various groups of states for the purpose of imposing restrictions on tho right of expansion by conquest. The Monroe Doctrine is an early example, a unilateral political pronouncement based on the international principle of self-defense but affecting an entire hemisphere. Article X of the covenant of the League of Nations is another, followed by the Nine-Power Treaty of 1922 concerning China, the Pact of Paris in 1929 for the outlawry of war, and the Inter-American Conciliation Convention and the Inter-American Arbitration Treaty in the same year. Still more definite commitments to prohibit conquest by force were made in the Argentine Anti-War Pact and the Convention on Rights and Duties of States in 1933 and in the Principles of Inter-American Solidarity and Cooperation in 1936. To supplement these and possibly to implement them with a sanction, there has come into con- siderable prominence in the current decade the doctrine of non-recognition of the legality of any acquisition made by conquest. As a restraining in- fluence, too, is the traditional state's duty of non-intervention, although its efficacy has been much clouded by conflicting conceptions of its observance in practice. How soon the old law and the old practice will yield to the new trend depends upon the very disturbing and uncertain events of the immediate future. The author has very usefully brought together the facts relating to the legal aspects of one of the world's great problems. ARNOLD J. LiEN.t THE BoTTLENEcKs OF BusINEss. By Thurman W. Arnold. New York: Reynal & Hitchcock, 1940. Pp. xi, 335. $2.50. This, the third of. Mr. Arnold's expositions in book form, finds him in a new r8le and a new mood. He writes now as Assistant Attorney General of the United States in charge of the Antitrust Division of the Department of Justice, not as a free-lance critic of our economic, political and legal systems talking with the easy freedom that belongs to those whose only t Professor of Political Science, Washington University. Washington University Open Scholarship 1941] BOOK REVIEWS responsibility is an academic one. The conservatizing effect of the change in r8les is unmistakable. The Sherman Act is not now mere "economic the only practical instrument at hand for the preser- meaninglessness"' but 2 vation of industrial, and therefore political, democracy in the United States. The "liberal economic planners" are politically "impractical," apparently quite as much of an obstacle to "the practical reformer" as the "reaction- ary opposition to reform." Refusing to recognize the importance of "the traditional idea of states' rights" (though a political fact far more im- portant "than anything any professor thinks up in a classroom"), the "political impossibility of delegating to the Executive Branch enough dis- cretion to use taxing or spending to regulate business," or that "the idea of the separation of powers of the government is one of paramount prac- tical utility" in devising a workable mechanics for removing "capitalized restraints of trade," these economic planners "seek the simplicity and sym- metry of new legislative brooms that never work * * *." Not only does Mr. Arnold doubt the political sagacity of those of his former intellectual climate; he is more shy of their glittering economic panaceas and their enthusiasm for concentration of power in political organs.3 "It is unneces- sary to argue today," says he, "against a planned political state in America so long as Europe is presenting us with a clinical example of the working of that great delusion." As for Germany specifically, the consumers' move- ment there to stave off a state-controlled economy failed "perhaps because there were so many economic planners in Germany-so many believers in the rationalized state * * *." In the United States "we are fortunate in possessing the strongest tradition in favor of free enterprise of any country in the world enforced by an agency of government the further removed from political pressure of any branch." "The administration of justice in every civilized country is the only balance wheel against political pressure." But perhaps most interesting of all is Mr. Arnold's now expressed prefer- ence, in administration of broad policy, for the historic judicial process as against the streamlined administrative process. Although his celebrated 4 comparison of commissions and courts in the Symbols of Government was pointed to the difference in public acceptance that can result from protective symbolisms, there lurked beneath an impatience with the result- ing view of judicial superiority; while in the present book the preference for orthodox Sherman Act procedure is clearly born of a belief in its inher- ent as well as its psychological advantages over "a shiny new administrative machine." Even the oft-criticized slowness of legal procedure, which the 1. Arnold, The Folklore of Capitalism (1937) 96. 2. Arnold, The Bottlenecks of Business (1940) 91 et seq. 3. Although in his earlier writings Mr. Arnold did not have particular occasion to advocate specifically either economic palliatives or political methods for achieving ends desired, a perusal of The New Deal Is Consti- tutional (1933) 77 New Republic 8; The Symbols of Government (1935); The Folklore of Capitalism (1937); and, A Reply [to opponents of the Court plan] (1937) 23 A. B. A. J. 364, turns up unmistakable clues of adherence to objectives and methods now on at least the doubtful list. 4. (1935) 199-206. https://openscholarship.wustl.edu/law_lawreview/vol26/iss2/6 296 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 26 streamlined administrative body would most certainly mitigate, "paradoxi- cally enough * * * seems actually to aid in antitrust enforcement." In this new mood, the nation's present head of antitrust enforcement offers his diagnosis of what ails the body politic and confidently advances a sure cure. The diagnosis is along lines reasonably well accepted in most economic and political circles. Industrial democracy is declared to be "the only basis on which political democracy can rest"; "our economic structure consists of two separate worlds"-organized industry, unorganized produc- tion and consumer groups. "In the first world we have concentrated con- trol, which makes possible high and rigid prices * * *. In the second world, we find competition, low flexible prices, large production and labor standards often at starvation levels"; this "unbalance of prices" is the consequence of the creation of endless "economic toll bridges" that lie athwart the road to full distribution of capacity production; the great need is, therefore, "to guard against the private seizure of power over a free market." Noteworthy is the fact that "Doctor" Arnold's diagnosis puts the finger of blame on market clogs created by "private conspiracies." Here and there, especially in discussion of the building industry tangle, he does recognize that state and municipal enactments may be but the barriers of weaker market groups which made up in political influence what they lacked in economic power; price fixing "even where it is administered by the govern- ment * * * needs the utmost scrutiny and safeguards." But withal, "we can survive the legislative grants of power because what has been granted by the democratic process can be safeguarded and can be taken away by the same democratic process. * * * It is the private seizure of industrial power that builds the kind of irresponsible organizations which can wreck a democracy. That power is subject to no election every four years." Such a view is bottomed on an optimism regarding the actualities of legislative processes that all cannot share; Mr. Arnold's own economic man Friday is inclined to treat all market barriers with equal seriousness regardless of whether they travelled the route of private or of public "legislative" channels.5 To believe that the ship of state can periodically free itself of economic barnacles of its own doing is to assume a control of the situation which Mr. Arnold categorically denies is possessed where the barrier to "free exchange in a free market" does not enjoy the blessings of public entrenchment.
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